RAVANJEET KAUR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1041/2019

[2022] HKCFI 1742

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1041 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision of the Director of Immigration dated 17 November 2017 (the “Director’s Decision”) and Decision dated 20 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The Director’s Decision is not subject to judicial review as it had been dealt with by the Board’s Decision. This application only deals with her application on the Board’s Decision.

2.  The applicant did request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.  A hearing was fixed for her.  However, she was absent and the application is therefore dealt with on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.  The applicant is a national of India.  She last entered Hong Kong on 25 January 2016 as a visitor. She was permitted to stay until 8 February 2016. She overstayed and surrendered to the Immigration Department on 11 February 2016. By letter dated 7 June 2016, she lodged non-refoulement claim on the ground that, if refouled, she would be killed by her family and her boyfriend’s family because of their disapproval of their relationship.

5.  According to the applicant, she met her boyfriend, Harjinder, in a party in 2015. They fell in love and decided to get married a few months after their relationship. She discussed the matter with her family. Her grandfather disapproved and threatened to kill her if she married Harjinder. Her father and a friend had gone to her hostel and assaulted her with hands. She had sustained injuries. Harjinder’s parents also disapproved their relationship. They left home together and went to a Sikh temple in Panchkula, which is 80 km away from her hostel. Her friend, Kiran, told her that their respective families were looking for them and would kill them if they found them. Harjinder’s father had also threatened to kill her if he found her because she took his son away from the family. They moved to another Sikh temple in Patiala, which is further away from her hostel. Upon advice of Kiran, they decided to leave India. On 21 January 2016, they left India for Hong Kong. In Hong Kong, they had separated from each other. She had no idea where Harjinder had gone. But she still feared that she would be killed by her family or Harjinder’s family if she returned to India. Details of her story are set out in paragraph 7 of the Director’s Decision described below.

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

(1)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(3)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

(4)  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of the Director’s Decision, the Director refused the applicant’s claim.  The Director found that the level of risk of harm upon her refoulement was assessed to be low because (i) there was no substantial ground to believe that she would be harmed or killed by her family or by Harjinder’s family upon her return [15-22]; (iii) state protection would be available to her [23-25], and (iv) internal relocation was an option open to her [26-30].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 6 November 2018, the Board conducted an oral hearing for her appeal. 

9.  Having considered her evidence, the Board affirmed the Director’s Decision. It found that, upon the applicant’s evidence, the treatments did not attain the minimum level of severity. There was no evidence to show that her right to life under BOR2 would be violated upon her return.  The Board dismissed her appeal.

Application for leave to apply for judicial review of the Board’s Decision

10.  The applicant has filed Form 86 dated 17 April 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In her affirmation in support of her application, the applicant stated:

(1)  she was not legally represented for her appeal hearing;

(2)  she did not have interpretation service for the preparation of her appeal or for the Board’s Decision; and

(3)  the adjudicator had made findings on presumptions and had not determined her case on case-by-case basis, taking into account of her personal circumstances.

DISCUSSION

12.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

14.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

15.  Those grounds under paragraph 11 do not assist her application. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 held that the applicant is not entitled to free legal representation at every stage of the proceedings as she had already had duty lawyer’s service at the screening stage [22]. The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held: “Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.” Ground (1) and Ground (2) fail. Ground (3) is her opinion or comments without any evidence in support of it. It fails too.

16.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

18.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1